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Courting an Advantage

The temporary lull in judicial confirmation battles has come to an end. Hoping to ramp up its base in time for the midterm elections, the White House recently promised supporters that it will flood the Senate with more right-wing appeals court nominees. Simultaneously, Senate Republicans have pushed for votes on existing ones, some of whom are so divisive that Majority Leader Bill Frist has not acted until now. Meanwhile, conservative activists sit like vultures, hoping that the 86-year-old John Paul Stevens retires and gives President Bush a crack at naming a third justice.

For their part, most Democrats prefer taking up almost any subject to avoid having to talk about judges. Where Republicans see opportunities by scoring points with their base, Democrats see pitfalls, believing that every vote against a nominee invites voter discontent. Americans care about vigorous enforcement of civil-rights laws, as well as worker, health and safety, and environmental protections. But Democrats have not found a way either to articulate their own affirmative vision or to expose Republican talking points about “judicial restraint” and “interpreting, not making the law” for the simplistic, counter-factual demagoguery that it is.

With a third Bush high court nominee potentially in the offing, the time could be now or never to flip the script.

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If President Bush gets the opportunity to nominate another Supreme Court justice, the trend toward weakening, even undoing, constitutional and statutory protections will accelerate. We might also witness judicial accommodation of this administration's unprecedented claims to nearly unfettered executive power. If the nominee were to be young, a substantial new, staunchly conservative bloc could dominate American law and life for more than a generation. Remember: Clarence Thomas is only 57, Alito is 56, and Roberts just turned 51.

Notwithstanding their advantages, Republicans have given Democrats an opening to find their voices. It presented itself (again) during the Alito confirmation process. Although Alito's lengthy record showed him to be one of the most aggressively conservative jurists in the country, Republicans billed him as a moderate, avoided talking about his legal views, and advanced a political strategy of blasting anyone who pursued such legitimate discussion -- senators, academics, the press -- as engaging in “despicable” behavior. Why? Because they know the public won't embrace the throwback legal regime that movement conservatives have long been trying to revive. The question is whether Democratic senators will exploit this continuing opportunity.

With the White House and its Senate allies spoiling for a courts fight and the President's poll numbers dwindling, there's no better time to stand up for good judges, to articulate the dangers posed by jurists “in the mold of Scalia and Thomas,” and to present the compelling vision of the law that progressives possess. But to do that, Democrats must make judgeships and the courts a priority.

That means explaining why independent courts are essential to upholding our rights and protections and why today it is “activist” conservatives who are trying to transform the law. It means focusing laser-like on nominees' legal views and forgoing the almost always-futile quest for “smoking-gun” disqualifiers. It means insisting on consequences when a nominee refuses to divulge what he or she thinks. It means wresting control of the confirmation process from the “Gang of 14,” which came together last year to avert a showdown over the use of the filibuster. To their credit, the Gang theoretically preserved the prerogative of a substantial Senate minority to moderate presidential overreaching. But in practice, the victory has proven hollow, since the Gang's seven Democrats seem unwilling to exercise that prerogative if the objections to a nominee are rooted in the one thing that matters most -- judicial philosophy.

For now, all eyes will turn to the skirmishes taking place in the Senate around a handful of appellate nominees. Because it is in the appeals courts that the law is often shaped, these are important appointments. To be sure, Democrats remain at a numeric disadvantage in challenging them, at least until November and perhaps thereafter. But Republicans' renewed push to play politics with judges nevertheless gives Democrats the opportunity to chart a new course. The 42 votes cast against Alito provided a good toehold. Democrats should now, with coherence, press forward.

Nan Aron is president of the Alliance for Justice, an association of public-interest groups in Washington, D.C.